The High Court refused a defendant’s application to strike two paragraphs from an affidavit and ordered discovery of documents in proceedings under the Proceeds of Crime Act 1996. It did not decide whether the property at issue was proceeds of crime, and left costs for further submissions.
The case was brought by F. M. K against G. H. An interim order under section 2 of the Act had been made on 30 April 2003. The matter before the court concerned two motions: the defendant’s request to remove passages from an affidavit, and a request for discovery. The plaintiff was seeking an interlocutory order under section 3.
The challenged passages, in an affidavit by Thomas Feighery, described information about an alleged theft of approximately €26,000, threats against R.L., charges against J.M. and D.L., and two prosecution witnesses who did not attend a trial. Feighery said he believed the witnesses had been threatened. Those matters were presented as information and belief in the affidavit, not as findings by the court.
The defendant argued that the material was prejudicial, scandalous and irrelevant to the claim. The court said the passages had been relevant when the affidavit was used for the section 2 interim application. Although affidavit evidence was not admissible for the section 3 application in the same way, the paragraphs had later been incorporated into the plaintiff’s reply to particulars. The judge ruled that the defendant was not entitled to have them struck out. For the section 3 application, the court said the relevant matters would need to be established through oral evidence.
On discovery, the court ordered production in a number of categories, including records of items seized from the defendant or a vehicle on 24 August 2002; material concerning information about cash, cannabis resin and alleged courier activity; records of information given at Fitzgibbon Street Garda Station and documents furnished to a detective at Kevin Street Garda Station; specified search warrants and related notebook entries; documents concerning an alleged €26,000 theft and the non-attendance of two witnesses; and records relating to injuries the defendant sustained in or about August 2002.
The judge modified the requested categories in light of the pleadings and said documents about conversations between Feighery and J.M. were not relevant to the pleaded issues. The court did not determine the substantive proceeds-of-crime claim. It said it would hear counsel on the appropriate costs order for each motion.